United States v. Mendoza-Alberto , 149 F. App'x 220 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4847
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DIGNA MENDOZA-ALBERTO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-128)
Submitted: August 31, 2005 Decided: September 29, 2005
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Angela H. Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Digna Mendoza-Alberto appeals from the 33-month sentence
imposed after her conviction following her guilty plea to reentry
of a deported alien felon, in violation of 8 U.S.C. § 1326(a) &
(b)(2) (2000). On appeal, Mendoza-Alberto argues that her sentence
is erroneous in light of United States v. Booker, 125 S. Ct. 738(2005), because the district court increased her criminal history
score based upon facts outside the indictment, plea agreement, and
stipulated factual basis for the plea. Because we do not find any
constitutional error in the computation of her sentence, we affirm
the sentence.
Digna Mendoza-Alberto pled guilty pursuant to a written
plea agreement to the count specified in the indictment: unlawful
reentry by an alien after having been deported after conviction for
an aggravated felony narcotics offense. The parties stipulated to
the factual basis of the plea, which specified that the previous
state narcotics conviction carried a 16-month sentence.
The presentence report (PSR) assessed a base offense
level of 8, with an additional 8 levels because Mendoza-Alberto had
been previously deported after conviction for an aggravated felony,
as charged in the indictment and stipulated to in the factual
basis. Her offense level was reduced by three for acceptance of
responsibility under U.S. Sentencing Guidelines Manual § 3E1.1
(2003). She therefore had a total offense level of 13. Her
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criminal history score was increased by a total of three points,
including a 2 point increase for committing the offense while on
escape from prison, USSG § 4A1.1(d), and a 1 point increase because
the offense was committed less than two years after release from
imprisonment, USSG § 4A1.1(e). The resulting criminal history
category was V. The sentencing guidelines range was 30-37 months.
See USSG Ch.5, Pt.A. At sentencing, Mendoza-Alberto raised
specific objections to the eight-level enhancement for being an
aggravated felon, and the three-level enhancement under § 4A1.1(d)
& (e) based on Blakely v. Washington, 542 U.S. 296 (2004). The
district court noted, but overruled the objections and declined to
give an alternative sentence. Mendoza-Alberto received a 33-month
sentence.
On appeal, Mendoza-Alberto argues that the increase in
her criminal history score based upon her escape status and that
she committed the offense within two years after release from
imprisonment was made in violation of the Sixth Amendment, in
accordance with United States v. Booker, 125 S. Ct. 738 (2005).
Because Mendoza-Alberto preserved the issue for appeal, the claim
is reviewed for harmless error. United States v. Mackins, 315 F.3d
399, 405 (4th Cir. 2003).
The Supreme Court held in Booker, 125 S. Ct. at 746, 750,
that the mandatory manner in which the federal sentencing
guidelines required courts to impose sentencing enhancements based
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on facts found by the court by a preponderance of the evidence
violated the Sixth Amendment. This court recently held in United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005), that “[f]or
purposes of determining whether the district court erred, we
necessarily use [the] guideline range based on the facts admitted
before adjusting that range for acceptance of responsibility.”
We conclude there is no constitutional error in the
calculation of Mendoza-Alberto’s sentence. Without the 3-point
increase under USSG § 4A1.1, Mendoza-Alberto’s criminal history
score would have been 8 resulting in a criminal history category of
IV. The offense level without consideration of the acceptance of
responsibility reduction, see Evans, 416 F.3d at 300, would have
been 13. The resulting guidelines range would have been 27-33
months. USSG § Ch. 5, Pt.A. Because Mendoza-Alberto’s sentence of
33 months is within the guideline range based on facts admitted
before adjusting for acceptance of responsibility, there is no
error and we affirm the sentence.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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